IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 13TH DECEMBER, 2018 SUIT NO. NICN/BEN/08/2016
BETWEEN
MRS OFURE J. OMOLE CLAIMANT
AND
- GOVERNING COUNCIL OF AMBROSE ALLI
UNIVERSITY, EKPOMA
- AMBROSE ALLI UNIVERSITY, EKPOMA DEFENDANTS
REPRESENTATION:
P.Y. Musa Esq, A.Y Thomas for the Claimant
N.L. Omorodion Esq. for the Defendants
JUDGMENT
By a General Form of Complaint filed on the 9th May, 2016, the Claimant
Claims against the defendants as follows:
- N28,673,000.00 (Twenty Eight Million, Six Hundred and Seventy Three Thousand Naira) being the outstanding balance of the arrears of allowances and other entitlements due to the claimant as Registrar of Ambrose Alli University, Ekpoma from 1st November, 2011 till 19th August, 2015.
- Interest on the aforesaid sum of N28,673,000.00 at the rate of 21% per annum from the 28th March, 2014 till the date of judgment in this suit and thereafter at 10% per annum till the entire debt is paid.
- N27,728,671.00 (Twenty Seven Million, Seven Hundred and Twenty Eight Thousand, Six Hundred and Seventy One Naira) being gratuity due and payable to the claimant by the defendants upon claimant’s retirement from the service of the defendants with effect from 19th August, 2015.
- Interest on the aforesaid sum of N27,728,671.00 at the rate of 21% per annum from the 19th August, 2015 till the date of judgment in this suit and thereafter at 10% per annum until the entire debt is paid.
- An Order directing the defendants to release to the claimant in a sound working condition, the claimant’s official Toyota Corolla car, which the claimant is entitled to take away as part of her retirement benefits upon claimant’s payment of the nominal value of the vehicle.
It is the Claimant’s case that she was appointed as the Registrar of the 2nd Defendant with effect from 19th August 2010 vide a letter no: AAU/VC/G.ADM/Vol.1/158/59 and her tenure is to expired on 18th August, 2015, she resumed duty with the 2nd Defendant and performed her duties conscientiously until 15th November 2011 when she was suspended from office by a letter no: AAU/VC/G. ADM/3/Vol.V11/189 without any rational reason. That she challenged the constitutionality and/or legality of the suspension before this Court vide Suit No: NICN/AK/56/2012 and judgment was delivered in her favour on the 24th March, 2014. It is her statement that following the refusal of the defendants to comply with the judgment of the Court, she instructed her counsel to write a formal request letter to the Defendants’ urging them to comply with the aforesaid judgment, the letter was written on the 10th April, 2014 to the Vice Chancellor of the 2nd Defendant. That notwithstanding the receipt of the letter, the defendants’ failed, refused/neglected to recall her from suspension, thus she was constrained to apply for the issuance and service of Form 48 on the Principal Officers of the Defendants, this necessitated her recall by the 2nd Defendant vide the letter dated 24th July 2015. Upon her recall, she was only paid part of her entitlements for the period of the unlawful suspension and she was not paid for the period of 1st November 2011- 18th August, 2015.
The breakdown of the unpaid entitlements is as follows:
| ALLOWANCES DUE FROM NOV. 2011 – AUG, 2015 | N | N | N |
| Fuel @N50,000.00/month | 2,300,000.00 | ||
| Entertainment @N3,000/month | 138,000.00 | ||
| Office Maintenance @ N5,000/month | 230,000.00 | ||
| Communication Allowance @ N20,000/month | 920,000.00 | ||
| Security Vote @ N5,000/month | 230,000.00 | 3,818,000.00 | |
| SUNDRY ALLOWANCES | |||
| Electricity Bill for Residence @ N5,500/month for 60 months | 330,000.00 | ||
| Wardrobe Allowance (2011-2015) @ N75,000pa | 375,000.00 | ||
| PUTME claims for Principal Officers for 4 sessions (2011 – 2014) @ N175,000/session | 700,000.00 | ||
| Part-Time Program claims for Principal Officers for 4 sessions (2010 – 2014) N190,000/session |
760,000.00 |
||
| Pre-Degree Program claims for Principal Officers for 4 sessions (2010 – 2014) N190,000/session |
760,000.00 |
||
| Student Industrial Work Experience Service (SIWES) claims for 5 sessions (2009/10/11/12/13/14) @ N95,000/session |
475,000.00 |
||
| Sandwich claims 4 sessions (2010-2014) @ N190,000/session | 760,000.00 | 4,715,000.00 | |
| MEETING OF COUNCIL & ITS COMMITTEES: ALLOWANCE FOR SITTING, TRANSPORT & NIGHT (WHERE APPLICABLE) – NOV. 2011 – AUG. 2015 | |||
| Council Meetings (46 sittings) | 2,465,000.00 | ||
| Finance & General Purpose Committee (12 sittings) | 675,000.00 | ||
| Tenders Board (23 sittings) | 1,150,000.00 | ||
| Committee on Establishments Structure (12 months) | 805,000.00 | 5,095,000.00 | |
| MISCELLANEOUS ENTITLEMENTS | |||
| Furnishing for Principal Officers’ residence | 1,800,000.00 | ||
| Gen set/plant for Principal Officers’ residence | 1,560,000.00 | ||
| Hire of car in lieu of official vehicle withdrawn (46 months) | 9,982,000.00 | ||
| Accrued leave (monetized) 2002, 2003, 2010 – 2015 | 1,703,248.00 | 15,045,248.00 | |
| TOTAL OUTSTANDING BENEFITS | 28,673,000.00 |
That in line with her condition of service, she is entitled to be paid gratuity in the sum of Twenty-Seven Million, Seven Hundred and Twenty-Eight Thousand, Six Hundred and Seventy-One Naira (N27, 728, 671.00)upon her retirement, which the defendants have failed/neglected to pay. Also, that as part of her retirement benefit the official Toyota Corolla Car assigned to her as Registrar of the 2nd Defendant is to be given to her.
The Defendants in their amended statement of defence filed on the 5th June, 2018 averred that full financial entitlement for the period the claimant was on suspension has been paid to her upon her recall to office, that the claimant is not entitled to Twenty Eight Million, Six Hundred and Seventy Three Thousand Naira (N28,673,000.00) as arrears of allowances and other entitlements as she enumerated. That she is not entitled to the sum of Twenty-Seven Million, Seven Hundred and Twenty-Eight Thousand, Six Hundred and Seventy-One Naira (N27, 728, 671.00) as gratuity and the Toyota Corolla Car or any other car. They averred that the payment of the gratuity is dependent on financial allocation from the Edo State Government in respect of purposes captured in the State Financial Annual Budget and they made policy of payment of gratuity on the bases of first in time from year of retirement because financial allocation was not enough, at the moment they have paid the backlog of gratuity serially up to year 2014. They contended that as a matter of fact, this suit is incompetent, an abuse of Court process and the Court is functus officio in respect of the claims as same have been decided by the Court in SUIT NO: NICN/AK/56/2012.
Parties during trial testified and adduced evidence in support of their case, the claimant testified for herself as CW1, she adopted her statements on oath filed on the 9th May 2016 and 16th December, 2016 respectively. She also tendered some documents which were admitted in evidence and marked Exhibit OJ-OJ11. Claimant also testified through One Chris Majebi Adanaibo as CW2 (a Subpoened Witness); a Registrar of the 2nd Defendant , he tendered the Subpoena Duces Tecum and Ad Testificandum and two Internal Memorandum which were all admitted and marked Exhibit CM&CM1 respectively. The Defendants on the other hand testified through one Ojeaga Oiseomokhai Faramoluwa, he adopted his sworn deposition filed 22nd June 2016 as his evidence in the case.
In compliance with the rules of this Court, both parties caused their written addresses to be filed at the close of trial, the defendants filed theirs on 5th June 2018 and canvassed a sole issue for the determination of the Court:
Whether having regard to the facts and circumstances of this case, this Honourable Court lacks jurisdiction to entertain the case?
Counsel argued that having regard to the fact of the case, this Court lacks jurisdiction to entertain this suit. He continued that the claimant cannot re-litigate the issue of her salaries; arrears of allowance and other entitlement due to her as the Registrar of the 2nd Defendant. Counsel cited the case of Okorocha v. P.D.P [2014] 7 NWLR (Pt.1406) 213, Ratio 19 on the doctrine of Res Judicata that is the claimant cannot bring an action against the defendants on the matter already litigated upon in NICN/AK/56/2012. He submitted further that the 5th Claim of the claimant is purely speculative and this Court does not act on speculation, he cited Agip (Nig) Ltd v. Agip Petroli int’l [2010] 5 NWLR (Pt.1187) 348 at 413 ratio 14. He also argued that the whole claimant’s claim are liable to be struck out, he cited NDIC v. Governing Council ITF [2012] 9 NWLR Pt. 1305 252. On relief one of the Claimant, counsel argued that she is not entitled to the relief as it has not been supported with any evidence or instrument of the defendants, that the Court cannot award specific sum of money as salaries and allowances where such amount has not been proven, he relied on Eze v. Gov. of Abia State [2014] 14 NWLR (Pt.1426) SC 192, p.215, pars E, also that Claimant’s witness under cross-examination stated that the claimant has been paid all her entitlements. He noted further that the Claimant’s Relief 2 is an ancillary to Relief 1 and thereby fails, he placed reliance on the Unilorin Teaching Hospital v. Abegunde [2015] 3 NWLR (Pt. 1447) 421. It is also the contention of Counsel on relief 3 of the claimant that she failed to specifically prove how she arrived at the said sum as her gratuity and also show the procedure and the template that she used. He noted that the procedure and template used by the defendant is captured in Appendix A of the 2nd Defendant regulation and Scheme Governing the Service of Senior Staff as Approved by the 1st Defendant on 26th October, 2010. He noted that the Court will not award specific sum of money as salaries and allowances to the claimant when it has not been proven and that the claim does not comply with Order 3, Rule 12(1) of NIC Rules 2017.Also, on Relief 4 of the Claimant, Counsel argued that it is an ancillary relief on Relief 3, that if the Principal relief fails, the ancillary relief must also fail. He submitted that the entire claims of the claimant must fail and urged the Court to dismiss the case because she failed to tender her letter of employment and her condition of service.
The Claimant also filed her written address on the 30th July 2018 and formulated an issue for the Court’s determination which is:
Whether the Claimant have not proved her claim on the preponderance of evidence and therefore entitled to the reliefs claimed from this Honorable Court
Counsel argued on some salient issues raised by the defendants in their address more importantly on the doctrine of Res Judicata, he noted that this Court has completely dealt with the issue made a pronouncement in its Ruling on 14th March, 2018. Counsel stated that the defendants hence cannot competently re-ague or re-open the issue pronounced upon on 14th March, 2018 and that the only avenue available for the defendants with respect to the ruling is to appeal against same. Reliance was placed on Nigeria Laboratory Corporation & Anor v. Pacific Merchant Bank Ltd [2012] LPELR-7859 (SC), Action Congress of Nigeria &Anor v. Peoples Democratic Party & Ors [2011] LPELR-3589 (CA). He noted that the Court is now functus officio with respect to the alleged ground of her case being allegedly caught by the doctrine of res judicata. Furthermore, on the claimant’s claim for her official vehicle, Counsel argued that the defendants’ sole witness also admitted under Cross-examination that as a Principal Officer, she is entitled to her official vehicle upon retirement after payment of the book value to be ascertained by the defendants. He stated that the claimant have paid the book value of the vehicle and the official vehicle that has since been released to her, hence the particular claim has been overtaken by event.
On her Reliefs 1 and 2, Claimant’s counsel submitted that the defendants did not dispute the claimant’s computation of her entitlement, he drew the attention of the Court to Exhibit OJ5 which was served on the defendants prior to the commencement of the suit and the defendants did not reply same. Also, that the defendants have not been able to produce any document evidencing the alleged payment of her entitlement by the defendants upon her recall from suspension. He placed reliance on the position of the law that it is the duty of a party who admitted indebtedness to another to amply demonstrate to the Court how the indebtedness was liquidated, Mat Holdings Ltd v. UBA Plc [2003[ 2 NWLR (Part 803) 71 at 86.
On Relief 3 and 4, Counsel noted that the defendants’ sole witness admitted under cross-examination that the gratuity becomes due and payable upon retirement of a Public Officer. In view of this, it is the argument of the Claimant that the defendant failed to pay her gratuity upon her retirement, that by Paragraph 5 of the Amended Statement of Defence, the defendants admitted their indebtedness and it is trite that admission is the best form of proof of any act in issue, he cited Alahassan &Anor v. Ishaka &Ors [2016] LPELR -40083 (SC), Ntuks v. NPA [2007] 13 NWLR (Pt 1051) 392 at 420, pars D-E. Also, that the defendants cannot be held to dispute the claimant’s computation having failed to show any contrary figure having maintained under cross-examination that she is familiar with the computation of gratuity being a principal officer. Counsel argued that whether or not the defendants have received any money from the Edo State Government for payment of gratuity is not relevant as the claimant does not have any contract of employment with Edo State Government.
Also on Reliefs 2 & 4, Counsel drew the attention of the Court to Order 47 Rule 7 of the Rules of this Court that empowers the Court to award judgment at the rate not less than 10% per annum, that having proven the defendant’s indebtedness by Exhibit) J5, OJ6 & OJ11, she is entitled to both her pre-judgment and post-judgment interest. He concluded that the clamant has proven her case on the preponderance of evidence as required by law and entitled to his claims.
Upon an indepth and careful consideration of the processes filed by the parties and the supporting documents, their respective written submissions canvassed by counsel on both divide, it is my respectful view that the sole issue that would best determine this case is;
Whether or Not the claimant has proven her case to be entitled to the reliefs sought?
The grouse of the Claimant for which she took out a Complaint before this Court against the defendants is that judgment was delivered in her favour in NICN/AK/56/2012 on the 3rd March 2014(Exhibit OJ1) wherein this Court held:
- That the continued suspension of the claimant from the office as Registrar of the 2nd defendant is illegal, unconstitutional and unlawful
- The defendant shall pay to the claimant within 30 days of this judgment arrears of salaries, allowances and other entitlements with effect from 1st November 2011 till Claimant’s full reinstatement to office
- Cost of this suit is put at Fifty Thousand Naira payable by the defendant to the claimant
It is her case that the defendants failed to comply with the aforesaid judgment by their refusal to pay her total financial benefit in the sum of Twenty-Eight Million, Six Hundred and Seventy-Three Thousand Naira (N28, 673,000.00) due to her as Registrar of the 2nd Defendant from the period of 1st November, 2011- 18th August 2015 when she was reinstated into office and that is in accordance with her conditions of service with the defendant, she is also entitled to be paid her gratuity in the sum of Twenty-Seven Million, Seven Hundred and Twenty-Eight Thousand, Six Hundred and Seventy-One Naira (N27,728,671.00) upon her voluntary retirement from the defendants’ service. The defendants on the other hand refuted the Claimant’s arguments; they stated that the claimant is not entitled to the sum of Twenty-Eight Thousand, Six Hundred and Thirty-Seven Naira (N28, 637,000) as arrears of allowance and other entitlement. It is not in contention that the claimant is entitled to be paid gratuity, this is because the defendants had admitted in their pleadings that the claimant is entitled to gratuity in the sum of Twenty-Seven Million, Seven Hundred and Twenty-Eight Thousand, Six Hundred and Seventy-One Naira (N27,728,671.00), but that they have to wait for government allocation before it could be paid.
It is germane for me to state from the outset that earlier in this suit, the defendants filed a Motion on Notice on the 3rd of March 2017 praying for an order of this Court dismissing this suit for want of jurisdiction, they contended that this Court is Functus Officio because the matter has been decided upon before in suit no; NICN/AK/56/2012. This Court has delivered its ruling in respect of application on the 14th June 2016. It is in this light that I hereby adopt the decision of this Court with respect to the application as part and parcel of this judgment and the argument of the defendants that the Court is functus officio as such cannot re-litigate on this suit is thereby discountenanced. I so hold.
Parties are ad idem as to the nature of employment relationship existent between the claimant and the 1st Defendant, it is evident on record that the claimant was appointed as Registrar of the 2nd defendant vide the letter dated 19th August, 2010 (Exhibit OJ9) where in it was stated that :
“The appointment is in accordance with the provisions of the Universities (Miscellaneous Provisions) Decree, 1993 (As amended), the University Regulations and the current practices operational in the Nigerian University System.”
From the above, the claimant’s employment with the 2nd defendant can be described as one with statutory flavour; an employment is said to have statutory flavour when the appointment and the discipline of an employee is protected by statute or laid down regulations made to govern the procedure for employment. Without much ado, it is trite to state perhaps for clarity that for an employment said to be one with statutory flavor must meet one of two conditions. One, the terms and conditions applicable to that particular employment must have been specifically provided for by a particular statute. Or in the alternative, the regulation which contains the applicable terms and conditions of the particular employment must have been made pursuant to or in exercise of the power conferred by a statute. Okocha v. CSC, Edo state &Anor [2016] 64 NLLR (Pt 228) 477; Isaa Saibu v. Kwara State Polytechnic Ilorin [2008] LPELR-4524 CA. Kuti V NSITFMB [2016] 7 NLLR (Part 240) 44.
It is also the statement of the Claimant that sequel to her recall from suspension by the Letter dated 24th July, 2015, Ref No: AAU/REG/P/319/386, she voluntary retired from the service of the 2nd defendant with effect from 19th August 2015 as Registrar on 18th August 2015 and got approval for same on the 14th August 2015 vide Exhibit OJ10. In law retirement from the Public Service implies a withdrawal from service which itself will further mean that the claimant is no longer in the employment of the 2nd Defendant, See the case of Wilson v. A.G Bendel State [1985] NWLR (Pt.4) 572.
The term retirement means bringing the service of an employee to an end. Retirement could be Mandatory, compulsory or voluntary. Mandatory retirement is when an employee in the Public/civil Service of the federation/State has attained the requisite age or years of service in service of the Federation/State. Compulsory retirement connotes when an employee’s employment is brought to an end prematurely by his employer as a measure of punishment. Voluntary retirement is a retirement done willingly by the employee. It is settled position of law in the world of work that parties to a contract may choose to determine the relationship by given notice as prescribed by its terms of contract. It is the law of common that every employee has the right to resign/retire from his/her appointment whenever he so desires and this takes effect when same is communicated or received by the employer even when the employer does not expressly accept it. It is thus obvious that the claimant vide Exhibit OJ10 has voluntarily retired her appoint from the service of the 2nd defendant as she did by a letter dated 11th of August, 2015 and with effect from 19th of August, 2015. This is also not in contention as by exhibit OJ 10 the Pro Chancellor and Chairman of Council of the University approved her voluntary retirement. It is in consequence that I find and hold that claimant lawfully retired from the service of the 2nd defendant on the 19th of August, 2015. I so find and hold.
It is the case of the Claimant that she is entitled to the payment of Twenty-Eight Million, Six Hundred and Seventy-Three Thousand Naira (N28, 673, 000) being the outstanding balance of the arrears of allowance and other entitlements due to her as the Registrar of the 2nd defendant from 1st November 2011 till 19th August 2015, She stated by Paragraph 12 of her deposition that she was not paid her total financial benefit as Registrar of the 2nd defendant for the period of her unlawful suspension, that she had already demanded the payment of the said sum from the defendants vide Exhibits OJ5, OJ6 and OJ7 but the defendants still failed to respond to the aforesaid letters or meet the demands made therein. The Claimant stated under cross-examination that the allowances are part of her entitlement of the office of the Registrar which she occupied. The Defendants on the other hand contested that the Claimant is not entitled to the said sum as arrears of allowance and other entitlements, learned defence counsel argued that the claimant did not plead what she was earning as salary and the exact amount that was paid to her and that there is no evidence to that effect before the Court. It is clear from Exhibit OJ (the Letter dated 15th November, 2011, Ref NO: AAU/VC/G.ADM/3/Vol.VII/189) that the claimant was suspended from the office of Registrar of the 2nd Defendant with immediate effect on 15th November, 2011 and she was recalled from suspension on the 24th July 2015 (Exhibit OJ4), the claimant requested for the unpaid salaries, allowances and entitlement from the defendants as disclosed in Exhibit OJ5, OJ6, 0J7 and OJ11 all to no avail, the subpoenaed witness also tendered some documents evincing the entitlements/allowances for council members and other principal officers of the university (Exhibit CM1).
It is settled that the claimant has the duty to establish her claims and/or discharge the burden of proof upon her so as to be entitled to the reliefs sought. It is the duty of the claimant to prove her claims on the strength of her case and not on the weakness of the defence. She has the duty to prove/establish vide credible and cogent evidence that she is entitled to her claim failure upon which is fatal to her case, See the cases of Imana v. Robinson [1979] 3-4 SC 1, Elias v. Omo-Bare [1982] 5 SC 25, Woluchem v. Gudi [1981] 5 SC. 291, Iseogbekun &Anor V. Adelakun &Anor LPELR SC.93/2003. The claimant claims in the sum of N28,673,000 is broken down as follows; (a) Allowances due from November, 2011- Aug, 2015 in the sum of N3,818,000; (aii) Sundry allowances in the sum of N4,715,000 (b) Meetings of Council & its Committees: Allowance for sitting, Transport, & Night (Where Applicable)-Nov 2011- Aug 2015 in the sum of N5,095,000; (c) Miscellaneous Entitlement in the sum of N15,045,248. With regards to her claims for Allowances due from November, 2011- Aug, 2015 in the sum of N3,818,000, the claimant merely asserted that she was entitled to the said sum, she did not tender any credible evidence to buttress the fact that she has not been paid the said sum, she has not therefore discharged the onus placed on her to prove her entitlement to the said sum and in fact she failed to tender her payslip and statement of account or any other document to establish/evince that she is entitled to those allowances. It is in this light that I find that the claimant’s claim for the sum of N3,818,000 being the Allowances due from November, 2011- Aug, 2015 fails.
It is her claim that she is entitled to Sundry allowances in the sum of N4,715,000 (b) Meetings of Council & its Committees: Allowance for sitting, Transport, & Night (Where Applicable)-Nov 2011- Aug 2015 in the sum of N5,095,000. There is likewise nothing before this Court evincing that she is so entitled to the total sum as claimed however a perusal of Exhibit CM1 tendered by the current Registrar of the 2nd defendant reveals that she is entitled to the said allowance in the sum of N75, 000 Per annum. It is trite that where pleadings are supported by cogent and credible evidence it is meant to be believed by the Court and it is premised upon this principle that I find and hold that the claimant is entitled to the sum of N375,000.00 as her wardrobe allowance from 2011 to 2015 at the sum of N75,000 per annum.
With respect to her claims for Meetings of Council & its Committees: Allowance for sitting, Transport, & Night (Where Applicable)-Nov 2011- Aug 2015 in the sum of N5,095,000. It is clear by Exhibit CM1 that the claimant is entitled to the sum of N40,000 per sitting, but a pertinent question to ask is, has the claimant proven that she is actually entitled to 46 sittings as claimed, there is no evidence on record stating or alluding to the fact that the defendants for the period the claimant was unlawfully suspended sat for 46 council meetings or that she participated in the Council meetings 46 times to entitle her to this claim. The Court works not with facts simpliciter, but with facts, evidence and law and where one is short off, the other cannot be heard this is because evidence adds flesh to the skeletal frame work of pleadings. Pleadings the law is trite cannot speak, they can only be made alive by credible evidence. The claimant in the absence of credible evidence to buttress her pleadings /facts, her claim in this regards goes to no issue. This is in view of the position of the law that facts pleaded without any evidence goes to no issue. I so find and hold.
The claimant also claims the sum of N15,045,248 as Miscellaneous Entitlements. It is trite as reiterated earlier that he who assert must prove See Section 131 of the Evidence Act, 2011. The claimant in this suit has not vide cogent evidence substantiated her claim. This is because there is no single item in exhibit CM1 as miscellaneous allowance. The claimant hence has failed to prove her claim in this regard and therefore it must fail. It is in consequent of this that I find that claimant claims in the sum of N15,045,248 as Miscellaneous Entitlements fails. I so hold.
I have held earlier in this judgment that the claimant voluntarily retired from the employment of the 2nd Defendant that is she left the employ of the 2nd defendant willingly and on her own volition and in view of this, she is entitled to the payment of her gratuity and pension in the sum of Twenty-Seven Million, Seven Hundred and Twenty-Eight Thousand, Six Hundred and Seventy-One Naira (N27,728,671.00), she also stated under cross-examination that she wrote to the Vice Chancellor for the payment of her pension and gratuity as disclosed in Exhibits OJ6 &OJ11 but got no response, The Defendants’ Witness likewise under cross-examination stated that gratuity becomes due and payable upon retirement of a public servant, also that there is no denial on the defendants’ part of the fact that the claimant has not been paid her gratuity, it stated by paragraph 9a-9c of the defendants’ amended statement of defence that the payment of the gratuity is subject to the allocation from the Edo State Government which has not reached the claimant’s turn. It is the argument of learned defence counsel that the claimant did not plead before this Court when the payment of her gratuity became due. The Claimant’s counsel on the other hand argued that the defendants have been served Exhibit OJ11 demanding her gratuity from them and they never disputed the figures served therein, that the defendants even admitted by Paragraph 5 of their amended statement of defence of the indebtedness to the claimant. The law is trite that an employee, who retires lawfully from his/her employment, would be entitled to be paid gratuity and pension and both becomes due upon retirement. Also, the right of person in the Public Service to receive pension and gratuity is constitutionally provided for therefore, no Government or body shall fetter an employee from exercising his constitutional right to gratuity and pension. It is in this light that I dismiss the argument of counsel in this regard and hold that payment of claimant’s gratuity and pension is due immediately upon her retirement from the service of the 2nd defendant. By the case of Popoola v Attorney General of Kwara State [2011] LPELR 3608CA; CBN v Amao [2010] 5-7SC (Pt 1) P. 25-26; N.E.P.A v. Adeyemi [2007] 3 NWLR (Pt. 1021) 315 at 337, pars F-G (CA). Pension/gratuities are monies earned by an employee and they are likened to a human right which is constitutionally guaranteed. It is a right that cannot be withheld under any circumstance or altered to his disadvantage. This position finds its root Section 210 (1) and (2) of the 1999 Constitution as amended that;
“Subject to the provisions of subsection (2) of this section, the right of a person in the public service of a state to receive pension or gratuity shall be regulated by law.
(2) Any benefits to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his disadvantage except to such extent permissible under any law, including the code of conduct.”
On whether the figures claimed by the claimant is correct or not, the Claimant under cross-examination stated before this Court that she computed her gratuity herself by virtue of her experience as the Registrar of the 2nd defendant, the defendant failed to tender any document in evidence to discredit the sum of Twenty-Seven Million, Seven Hundred and Twenty-Eight Thousand, Six Hundred and Seventy-One Naira (N27,728,671.00) computed by the claimant as gratuity. They contended that the claimant failed to specifically prove how she arrived at the amount as her gratuity that the template in use by the defendant is captured in Appendix A of the 2nd defendant regulation and Scheme of Governing of the Senior Staff as Approved by the Governing Council on October 26, 2010. The defendants denying the assertion that the amount computed by the claimant is incorrect did not provide any amount in contradiction; neither did they tender the provisions of the Appendix A of the regulation and Scheme of service relied upon. The burden of proof of the sum of Twenty-Seven Million, Seven Hundred and Twenty-Eight Thousand, Six Hundred and Seventy-One Naira (N27,728,671.00) having been discharged by the claimant thereby shifts to the defendants who refutes same to provide any document to the contrary, See the cases of Osukpong v. Eduioka[2016] 1 NWLR (Pt. 1493) 329; Nwadinobi v. M.C.C (Nig) Ltd [2016 1 NWLR (Pt.1491), the defendants have the duty to prove their assertion vide credible evidence which they have failed to do, See Section 131-137 of the Evidence Act, Ojoh v. Kamalu [2005] 18 NWLR (Pt.958) 523. It is apposite to state that Defence Witness under Cross-Examination stated that the 2nd defendant have computed the claimant’s name as part of those to be paid by the government when the money comes that the defendants is not in denial that they are owing the claimant, this is invariably an admission. It is trite law that admitted fact need no further prove, Section 123 of the Evidence Act, Atanda v. Iliasu [2012] LPELR-19662(SC),A.G Nasarawa State v. A.G Plateau State [2012] LPELR-9730 (SC); Din v. African Newspapers [1990] 3 NWLR (PT. 139) 392, the defendants have admitted through DW1 that they are owing the claimant her gratuity. The defendants are therefore, estopped henceforth from further denying that the claimant is not entitled to her claim in this regards. They cannot be speaking from the two sides’ of their mouth. It is against this backdrop that I find that the claimant is entitled to the sum of Twenty Seven Million, Seven Hundred and Twenty Eight Thousand, Six Hundred and Seventy-One Naira(N27,728,671.00) being her gratuity due and payable by the defendants upon her retirement from the service. I so hold.
On the claimant reliefs on interest at the rate of 21% per annum on the sum of Twenty-Eight Million, Six Hundred and Seventy-Three Thousand Naira (N28, 673, 000) being the outstanding balance of the arrears of allowance from the 28th of March, 2014 till date of judgment in this suit and thereafter at 10% per annum till the entire debt is paid and other entitlements and the sum of N27,728,671.00 at the rate of 21% per annum from the 19th August, 2015 till the date of judgment in this suit and thereafter at 10% per annum until the entire debt is paid. The general rule at common law is that pre judgment interest is not payable on a debt or loan in the absence of express agreement, See the cases of Alfontrin Ltd v. A.G Federation [1996] 9 NWLR (Pt. 4750) 634, Diamond Bank Ltd v. Partnership Investment co Ltd [2009] 18 NWLR (Pt 1172) 67, Adebiyi (trading under the style of delock Association &Ors) v. National Institute of Public Information &Ors [2013] LPELR-22628 (CA). It is in view of this that I find that the claimant’s claim for pre-judgment interest in the rate of 21% per annum from the 28th of March, 2014 and 19th August 2015 till date of Judgment fails. On her claim for post judgment interest at 10% per annum until the entire debt is paid, by the provisions of Order 47 (7) of National Industrial Court Rules 2017, this Court has the power to order interest to be paid on the said sum at the rate of 10% per annum. It is in view of this that I find that the sum of Twenty Seven Million, Seven Hundred and Twenty Eight Thousand, Six Hundred and Seventy-One Naira (N27, 728,671.00) awarded the claimant as her gratuity due and payable by the defendants upon her retirement from the service should be paid within 60 days of this judgment failing which it is to attract an interest of 10% per annum. I so hold.
On the claimant’s claim for the release of official Toyota Corolla car as part of her retirement benefit upon the payment of the nominal value of the car, it is the statement of the defendant by Paragraph 6 of Amended Statement of Defence that the claimant is not entitled to the Toyota corolla car or any other car as retirement benefit that there is no precedent for such entitlement, the claimant refuted the argument of the defendants in Paragraphs 3 and 4 of her Reply to the Statement of Defence by stating that the retention of the Toyota Corrola car is based on the extant approved entitlement of principal officers who have completed their tenure and the policy had already been executed in favour of some other principal officers who had retired. It is obvious from Exhibit OJ8 (the Memo dated 18th August 2015, Ref No: AAU/REG/CVC.2/Vol.XVI/491 written by her to the Vice-Chancellor that she has earlier requested for the Toyota Corolla (2008) model car and from Exhibit CM1 (Memo dated 12th January 2010, Re No: AAU/CAD/ICD/51/VOL.VII/378) paragraph 3.3(iii) page 4 that the claimant is entitled to the official car as part of the conventional entitlements of principal officers of the University. The Defence Witness testified under cross–examination that a Principal Officer is entitled to Official Car upon the payment of the book value. Learned Claimant’s Counsel stated in page 6 and 14 of his written address that the Claimant has paid the book value for the vehicle and same has since been released to the claimant by the defendants. It is in view of this that I find and hold that this claimant’s claim that the release of the official Toyota Corolla Car in sound working condition as part of her retirement benefit upon the payment of the nominal value of the vehicle has been overtaken by event.
In conclusion and for the avoidance of doubt, the claimant’s claims succeed in in the most part and it is declared and ordered as follows:
- That the claimant lawfully retired with effect from 19th of August, 2015.
- The claimant’s claim for the sum of Twenty-Eight Million, Six Hundred and Seventy-Three Thousand Naira (N28,673,000.00) being the outstanding balance of the arrears of allowance and other entitlements succeeds in part as stated hereunder.
- That the claimant is entitled to the sum of N375,000 as her wardrobe allowance from 2011 to 2015 at the sum of N75,000 per annum.
- That the claimant is entitled to the sum of Twenty Seven Million, Seven Hundred and Twenty Eight Thousand, Six Hundred and Seventy One Naira(N27,728,671.00) being her gratuity due and payable by the defendants upon her retirement.
- That this claimant’s claim that the release of the official Toyota Corolla Car in sound working condition as part of her retirement benefit upon the payment of the nominal value of the vehicle has been overtaken by even.
- That claimant claims on pre-judgment interest fails.
- All judgment sum is to be paid within 60 days of this judgment, failing which it shall attract an annual interest of 10% of the total judgment sum.
I make no order as to cost.
Judgment is accordingly entered.
Hon. Justice Oyewumi Oyebiola O.
Presiding Judge
